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Home > Judgments > 2011 archive

A v T [2011] EWHC 3882 (Fam)

Hague Convention / Brussels II Revised proceedings where there had been a written agreement entitling the mother to leave Sweden to return to the UK with the children should she choose to do so.

The case concerned two children aged 4 ½ and 2. The mother was English and the father Swedish. They met in 2002 and lived initially in England before moving to Sweden in 2004, where they married. The mother was, however, very unhappy living in Sweden and shortly after she became pregnant for the first time, the parties entered into a written agreement, according to the terms of which the mother was entitled to leave Sweden with the children on a permanent or temporary basis should she ever choose to do so.

Thereafter the mother remained unhappy with life in Sweden and the parties discussed moving to the UK, although this never happened. In February and March 2011 the mother drew up further documents, which the father signed, which, by their terms, gave her permission to remove the children indefinitely and without limitation.

Later in 2011 the parties' relationship broke down and in June the mother travelled to the UK with the children. The father visited in July and after his return later that month the mother wrote to him indicating her intention to remain permanently in the UK with the children.

Thereafter, the mother issued divorce proceedings in England and the father initiated divorce and custody proceedings in Sweden.  The mother then started wardship proceedings in England, before the father approached the Swedish Central Authority and applied for the return of the children pursuant to the Hague Convention. Following that step, the other proceedings in both countries were stayed. In the Hague proceedings, the mother relied on the defences of consent and acquiescence.

Baker J considered the evidence and the authorities, particularly Re PJ (Abduction) [2009], now the leading decision on the interpretation of the consent defence. The father relied heavily on Re L (Abduction) (Future Consent) [2008], arguing that the previous consent to a permanent removal was suspended/modified by the subsequent temporary removal. Baker J rejected the argument, finding that the 2006 agreement was clear and unequivocal, that the father had given his consent which he had never withdrawn; on the contrary, he had reaffirmed it on a number of occasions. It did not follow from Re L that in every case where a mother takes children out of the jurisdiction for a limited period, a clear and unequivocal agreement as to permanent removal is automatically superseded. Accordingly the mother's consent defence was made out (although the acquiescence defence would not have been). In all the circumstances of the case Baker J exercised his discretion to refuse to order a return.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


___________________


IN THE HIGH COURT OF JUSTICE FD11P02388.
(FAMILY DIVISION)

 Royal Courts of Justice,
 Strand,
 London  WC2A 2LL.

 Friday, 9th December 2011.

Before:

MR JUSTICE BAKER


A Applicant

-   v   -

T Respondent

____________________


MISS JACQUELINE RENTON  (instructed by Hartnell Chanot & Partners, Oriel House,
Southernhay Gardens, Exeter  EX1 1NP)      appeared on behalf of the Applicant Father.

MR JEREMY ROSENBLATT  (instructed by solicitors) appeared on behalf of the Respondent Mother.


____________________

Tape Transcription by:
John Larking Verbatim Reporters,
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____________________


Words:   8946 JUDGMENT
Folios:   125 (approved)
 
 Friday, 9th December 2011.

JUDGMENT:

MR JUSTICE BAKER:
01 In these proceedings, brought under the Hague Convention on civil aspects of international child abduction as implemented by the Child Abduction Custody Act 1985 and complemented by the Council's Regulation EC No 2 to 01 2003 concerning the jurisdiction and recognition of enforcement judgments in matrimonial matters and the matters of parental responsibility (commonly known as Brussels II Revised), a father EA represented by Miss Jacqueline Renton seeks the return to Sweden of two children, J born 21st April 2007 so therefore now aged four and a half, and E, a girl, born 2nd December 2009 and therefore now just two, following their retention in this country by their mother CT, who is represented by Mr Jeremy Rosenblatt.  It is not disputed that the children were indeed retained in this country by the mother on 26th July or that at that stage they were habitually resident in Sweden.  The mother's Defence to the claim brought by the father is that he consented to or acquiesced in the children's removal or retention.

Background summary.
02 The mother is 39 years old, having been born on 5th January 1972.  The father is 35, having been born in Sweden on 1st May 1976.  The mother is English; the father is Swedish.  They met in the summer of 2002 and shortly thereafter commenced a relationship and the father moved to England for a period of several months.  In 2004 the parties moved to Sweden after becoming engaged and married on 30th July 2005.  The mother started suffering from depression and had worsening bouts of depression together with anxiety attacks.  She became unhappy living in Sweden.  In autumn 2006 she became pregnant.  On 2nd December 2006 the parties executed an agreement which forms the basis of the case before me and the terms of which are set out substantially as follows:

'Agreement dated 2nd December 2006 between CT and EA.  Recitals.  CT and EA are English and Swedish respectively, married and currently living in Sweden.  CT does not anticipate living in Sweden on a permanent basis.  They intend to have children together and have agreed to set out the terms of the living arrangements of any children that they have together in the event that CT decides to leave Sweden while any of those children are under the age of 18.  This agreement is intended to set out those terms and to clarify that EA will give all permissions which may be necessary or required to enable CT to leave Sweden with their children whether it be on a permanent or temporary basis.'

There is then a Definitions and Interpretation section which includes inter alia the following provisions:

'In this agreement ... "event" means a decision by CT to leave Sweden at any time whether permanently or temporarily for any reason whatsoever ... "permissions" means all or any consents, approvals or other permissions whatsoever required under Swedish or English law by the Swedish or English authorities whether orally or in writing to enable CT to leave Sweden at any time whether permanently or temporarily with the offspring and without restriction whatsoever.'

Further on in the agreement EA's obligations are summarised as follows:

'In consideration of the sum of £1 paid by CT to EA and of the obligations set out in Clause 3 below EA hereby (a) gives all permissions necessary to enable CT and the offspring to leave Sweden whether temporarily or permanently at any time and for any reason whatsoever, and (b) agrees that he will give all or any further permissions which may be necessary to enable CT and the offspring to leave Sweden or remain out of Sweden whether temporarily or permanently at any time and for any reason whatsoever, and (c) agrees that when asked will orally or in writing he will give all permissions promptly in whichever form they may be required orally or in writing and will use his best endeavours to give those permissions, and (d) agrees that he will provide promptly whatever finance necessary to enable CT and the offspring to leave Sweden and will continue to support CT and the offspring financially so as to enable them to live in the same manner to which they have been accustomed in Sweden after they have left Sweden.'

By Clause 3 of the agreement CT's obligations are set out as follows:

'CT agrees that should an event occur she will grant EA reasonable access to the offspring in whichever country they choose to live.  For the avoidance of doubt, CT will not be obliged to bring or send the offspring to Sweden or to provide any financial assistance to EA in order to provide that reasonable access.'

I ought to add that under the Definitions section 'offspring' is defined as meaning 'any child or children under the age of 18 having (a) CT as its or their biological or adoptive mother, and (b) EA as its or their biological or adoptive father.'

Clause 6 to the agreement headed 'Good faith' reads as follows:

'CT and EA have each read and understood the terms of this agreement and consider the terms of it reasonable.  They each recognise the moral obligations intended by this agreement and agree that they will cooperate in good faith with each other for the purpose of enabling each to fulfil his or her obligations under this agreement.'

03 The mother described the circumstances in which she sought and obtained this agreement from the father in her oral evidence.  She said that her understanding was that the father had thereby given all permission that she would need at any time whenever she wanted to leave Sweden permanently with the children.  She said that the father had always known that she was not happy living in Sweden.  She said that when she became pregnant she became particularly concerned at the prospect of being trapped.  She was very unhappy in Sweden and she would never have had children if she had thought there was a chance that she would be trapped there.  It is the mother's case that in many conversations subsequently the father reiterated his assurance and agreement that he would allow the mother and children to leave Sweden to go to England whenever she wanted to do so.

04 On 13th April 2007 the mother gave birth to the parties' first child J.  On 2nd December 2009 she gave birth to their second child E.  The mother continued to be unhappy living in Sweden and there were many conversations between the parties about the prospect of moving to the United Kingdom.  At the end of 2010 the parties agreed that they would move to this country at the end of 2012.  The father agreed that he would relocate his work to this country.  By the end of 2010 the mother's depression had worsened and the relationship between the parties had started to break down.  They underwent a course of marital counselling in Sweden.  In early February 2011 the mother drew up a document to be signed by the father in these terms:

'To whom it may concern, I EA am the lawful custodial father of J [at this point the date of birth and certain further details of J are set out] and E [again at this point further the date of birth and further details of E are set out].  J and E have my consent to travel with their lawful custodial mother CT [date of birth, place of birth and other details set out] to anywhere in the world indefinitely without limitation either in place or time whatsoever.'

No signed version of this document has been produced to the court but the mother's case is that the father did indeed sign it and that it was witnessed by a neighbour MM.  The father's evidence was that he could not remember signing the document.  Having heard the parties' evidence I accept the mother's account and I find that the father did indeed sign it.

05 On 12th February the mother and the children came to England for three weeks.  Whilst here, the mother contacted the father by email to arrange the signing of a further document which was in due course signed by the father on 4th March.  On this document there is no dispute that it was signed and indeed a signed copy has been produced to the court.  The terms of the March document are in some respects similar to those of the February document but there are some significant differences.  The relevant parts of the document read as follows:

'To whom it may concern, I EA am the lawful custodial father of J ... and E ... J and E have my consent to travel with their lawful custodial mother CT ... to anywhere in the world whether on a temporary or permanent basis without limitation either in place or time whatsoever.  The contents of this letter including but not limited to the consents given in it are intended to be perpetual and be of unlimited duration.'

06 At the time the father signed the March document the mother and children were still in England visiting her family.  An exchange of emails took place between the parties prior to the execution of that document.  On 3rd March the mother emailed the father asking him to print off the attached document, sign it in front of a witness, who she said could not be a relative, scan it and send it back to her, making sure that it was signed in blue ink.  She added 'I need to have this back from you if I am going to travel on Saturday.'  Later that evening she emailed him again 'You had better get that letter signed and back to me before the end of tomorrow or we will not be coming on Saturday.  It cannot be co-signed by a relative.'  The following morning the father duly scanned and emailed to the mother a signed copy of the document.

07 What was the mother's purpose in obtaining these further documents?  She says that it was two-fold.  First, she says that she wanted reconfirmation of the earlier 2006 written agreement which on her account had been reiterated by the father orally on a number of occasions in the intervening period, namely, that he unequivocally agreed that she would be allowed to remove the children from the jurisdiction at any point.  Secondly, she says that she had experienced some difficulties with border authorities when seeking to cross borders with the two children.  She wanted a shorter document that would set out the terms of the agreement and would also facilitate travel.  The father's case now is that the only purpose of the documents – in particular the March document – was to facilitate travel.

08 The mother duly returned with the children in March and the parties resumed living together but it is clear that their relationship continued to deteriorate.  The mother continued to be in a state of anxiety and unhappiness about her life in Sweden.  At the end of March the father told her that he would have to go to another country on a business trip and her response in email was that she would then go to England as she had 'had enough of this.'  There was then a series of further emails between the parties on 31st March.  The mother said that when she was in England the following week:

'I will be viewing some flats for me and the children to move into.  I have already spoken to an estate agent and solicitor about it.  If I make an offer next week me and the children will most likely be ready this summer.' 

09 The father responded:

'What can I do to make you not be so depressed?  I can't see any other option but to change my job to one that never require me to travel or not to come home after five.  Would that be an option?  Or that until we find a good way for us to move to England?' 

10 The mother responded:

I'm afraid I can no longer wait for your plan to move to England to miraculously materialise because in all the years of talking about it you have done precisely fuck all about it.  Empty words my dear.  My concern now is moving me and the children because I cannot tolerate living in Sweden any longer and as the children's primary care giver I have to make sure that I am okay.  What you do with your job/friends/family is no longer a concern of mine and frankly it feels like a relief to let go after fighting for it for so long.'

11 The father responded:

'Am I to understand that you are leaving me and moving to England with our kids?' 

Now it is not clear to me from the documents produced to the court whether the mother responded to that question and if so in what terms.  The documents in the court bundle suggest that she may have answered the question in the affirmative but the timing of the emails in the copies in the bundle is unclear.  There is however no evidence that the mother denied that she was going to leave.  The following day, on 1st April, the father sent an email stating inter alia:

'As you might understand, I'm not happy even thinking about you or the kids going and leaving me.  I do love you and I'm sure we can work it out as long as we find a common ground to the solution.  I've got no problems in moving to England and I believe that this would be the best way for us to be a happy working family.  I can't bear the thought of being without you and the kids.  I love you all more than anything and I'm of course ready to do anything as well for our family.'

It was not clear from the papers whether or not the mother and the children did indeed go to the United Kingdom in early April and I have now been told that in fact they did not.  But they were certainly at the end of April in Sweden.  On 27th April the parties enrolled E to start English nursery in Gothenburg in August.  J had previously been enrolled in a school due to start in the same month.

12 The mother and the children, it seems, did go to England from Sweden for a week at the end of April/beginning of May.  On their return the relationship between the parents continued to deteriorate.  The evidence shows that it was now the father who was coming to the view that the marriage was over.  Mother continued to suffer from depression and was prescribed a high dose of antidepressants.  In early June the father left the family home.  On 3rd June the mother sent him a long email in terms that made it clear that she wanted the marriage to continue and asking the father to 'hold off any life-changing decisions for perhaps the next six months.'  She said that she believed that by that point she would be feeling much better.

13 On 12th June 2011 the mother and children came to this country and have remained here ever since.  The circumstances in which they travelled here have been the focus of much of the evidence of the hearing.  The mother's case as set out in her affidavit is as follows:

'By the end of May 2011 I noticed that the father's demeanour had changed and he was no longer tolerant and supportive of me as he had been previously.  It became clear that he was not wholly supportive of us attempting to save the marriage and he suggested that I travelled to England with the children to give us time and space to attempt to repair the marriage.  The date for me to return with the children was left open-ended and no real discussion about this was had before I left for England.'  (see para. 12 B81.)

14 The father's case as set out in his affidavit is as follows:

'As we had been unsuccessful in finding suitable counselling services for the mother in Sweden I agreed that she could visit her family in England to try to seek professional help from mental health services in England as I hoped she would be more receptive to those in her home country.  CT also received support from her parents whom she and the children would stay with.  She refused to travel without the children accompanying her.  As it was the school holidays in Sweden I agreed that the children could go with CT on the understanding that CT would return with them in time for them to start the new term at nursery and school in the first week of August.  I had not really given much consideration to what would happen if CT decided that she wanted to remain in England as this was never discussed between us but suffice to say that I would be devastated if the children were to stay in England.  To all intents and purposes I understood CT and I would try to resolve the differences in our marriage and that she would return to Sweden.'  (see paras. 20-21 B146-147.)

15 There is some contemporaneous evidence in the form of text messages that passed between the parties after the mother and the children had travelled to England.  It is clear from those text messages and all the evidence that when the mother and children left Sweden on 12th June it was her expressed intention to return to Sweden at the end of the summer.  Return tickets were purchased; many of the children's belongings and the mother's belongings remained in Sweden; in several text messages the father inquiries when the mother and the children will be returning; in response to one of those text messages the mother stated that the return flights 'are 30th August when J starts school.  I don't know if we'll stay with that one.  The last few years in Sweden and last two months in particular have really knocked the stuffing out of me and I think it's good for me to spend some time here finding myself again and remembering who I am.'  At no point in the text messages did the mother say that she was intending to stay permanently in this country.  Equally, however, at no point in the text messages did the father say that he was withdrawing his consent to the mother remaining and removing the children from the jurisdiction.  It is indeed accepted on his behalf that he never made any express statement in those terms.

16 On 17th July the father came to England and stayed in the same house as the mother and children for about a week.  The mother's evidence is that during this visit the father made it clear by his conduct that he regarded the marriage as over.  She states that after his return to Sweden she decided to exercise her rights under the agreement to remain in England with the children.  On 26th July the mother sent to the father a long letter by email indicating her intention.  The email stated inter alia:

'Hope you got back okay on Sunday.  I think the week went pretty well in all the circumstances and I'm glad we both made it an enjoyable week for the children.   As you know, I came to England with the children with your encouragement and the belief that spending some time apart from each other might have given us the time and space we needed to sort our problems out and fix things between us.  I had really hoped that we would be able to explore every avenue to try to salvage things between us but after your visit last week I can now see that this is not what you want and accept that this isn't going to be the case.  With that in mind we obviously have to decide what to do for the best regarding the children.  I have been considering all the options seriously – very seriously – and obviously none of them are going to make both of us 100% happy but we are both going to have to try to find a way to work together and reach a compromise for the children's benefit.  As we have previously discussed I have your written consent to do I really think that it is best for all of us that me and the children need to stay in England.  In fact having thought about all the different permutations of this situation I think this is the only one that's actually at all feasible.'

The mother then proceeds to set out detailed proposals of the arrangements for the children.  Later in the email she states:

'When the children and I came back to Sweden in May we first raised the possibility of us separating.  I said that in that event I would need your support to help me and the children get established here in England to which you replied "Of course I will.  What kind of person do you think I am?  You do not do that."  I hope you will honour those words and that we can make this transition as amicably, peacefully and smoothly as possible for both our sakes and that of the children.'

Three days later the mother issued divorce proceedings in England.  Those proceedings have been stayed pending the conclusion of these Hague proceedings.

17 On 31st July the father replied to the mother's email expressing a wish for the mother and children to return to Sweden.  He made no reference in his email to the mother's assertion that she had been given written consent to remove the children permanently from the jurisdiction of Sweden.  After the email of 31st July the father emailed her again on 5th August saying:

'I think you might have misunderstood things when you said that I have always agreed that you could take the children and remove wherever and whenever it pleases you.  What I have said is I will always have open mind to move to England together and nothing else.  With regards to any agreement, I have only agreed that you could travel with the children without my consent but I have never agreed to you moving anywhere with the children without me or without my consent.'

18 To that email the mother replied on the same day:

'You have given me your consent to permanently relocate with the children countless times over the years including recently, both in writing and orally.  I have not misunderstood it.  It has always been our agreement that I would determine where the children and I would live whether you joined us or didn't, and the wording of the documents you have signed is clear and unambiguous to that effect.'

19 The father responded on the same day:

'Since the contract you are referring to was done under very different circumstances and you would not accept anything else but me signing, it was all done under a lot of pressure and I think you will agree if you think about the situation.'

20 Thereafter further emails were exchanged between the parties in which they adhered to the same positions, the mother saying the father has given unequivocal consent, the father denying that he has done so and asking that the children be returned back to Sweden.  So far as I can see, both parties were thereafter consistent in sticking to those positions.  Father consulted a lawyer in Sweden and it seems started a divorce process in that country.  On 19th August he issued custody proceedings in Sweden for joint custody of the children.  Those proceedings have also now been stayed pending the conclusion of these Hague proceedings.   The parties continued to exchange emails, including emails about a visit by the father to see the children.  He duly came in October and had contact.  On 19th October the mother started wardship proceedings in this country.  Those proceedings too have been stayed pending the conclusion of these Hague proceedings.  On 12th October the father approached the Swedish Central Authority with a view to applying for the return of the children under the Hague Convention and on 25th October proceedings were started in this country under that Convention.  Directions were duly given in a series of court hearings.  On 2nd November a Defence was filed on behalf of the mother indicating that her Defences were to the claim were consent and alternatively acquiescence.

The statutory framework.
21 The two objectives of the Hague Convention as set out in Article 1 are:

'(a) To secure the prompt return of children wrongfully removed to or retained in any contracting State, and (b) to ensure that rights of custody and access under the law of one contracting State are effectively respected in the other contracting States.'

The locus classicus of the object and purpose of the Convention is to be found in the speech of Lord Browne-Wilkinson in Re H and others (minors) (abduction) (acquiescence) [1998] AC 72 at 81C:

'The object of the Convention is to protect children from the harmful effects of their unlawful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence.  This is to be achieved by establishing a procedure to ensure the prompt return of the child to the State of his habitual residence.'

22 More recently Baroness Hale in Re D (a child)(abduction)(rights and custody) [2006] UKHL 51, [2007] 1 AC 619 observed at para. 48:

'The whole object of the Hague Convention is to secure the swift return of children wrongfully removed from their home country not only so that they can return to the place which is properly their home but also so that any dispute about where they should live in the future can be decided in the courts of their home country according to the laws of their home country and of course the evidence which would mostly be there rather than in the country to which they have been removed.'

In other words, crucial decisions about the welfare of children are to be taken in the country of their habitual residence and courts hearing applications for summary return under the Convention must refrain from conducting any welfare inquiry until the application for summary return has been resolved.

23 Article 12 of the Convention provides:

'Where a child has been wrongfully removed or retained under the terms of Article 3 and at the date of commencement of the proceedings before the judicial authority of the contracting State where the child is a period of less than one year has elapsed since the date of the wrongful removal or retention the authority concerned shall order the return of the child forthwith.  The judicial or administrative authority even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment.'

24 Article 13 provides:

'Notwithstanding the provisions of the preceding Article the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that (a) the person, institution or other body having the care of the child was not actually exercising the custody rights at the time of removal or retention or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position.  The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of its views.'

25 The provisions of the Hague Convention, in particular Article 3, have been complemented by Article 11 of Brussels II Revised which provides as follows:

'(1) Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention 1980 ... in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention paras. 2-8 shall apply.

(2) When applying Articles 12 and 13 of the 1980 Hague Convention it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

(3) A court to which an application to return a child is made as mentioned in para. 1 shall act expeditiously begin proceedings on the application using the most expeditious proceedings available in national law; without prejudice to the first sub-paragraph the court shall except where exceptional circumstances make this impossible issue its judgment no less than six weeks after the application has been lodged.

(4) A court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

(5) A court cannot refuse to return a child unless the person who requests the return of the child has been given an opportunity to be heard.

(6) If a court has issued an order for non-return pursuant to Article 13 of the 1980 Hague Convention the court must immediately either directly or through its central authority transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention as determined under by national law.  The court shall receive all the mentioned documents within one month of the date of the non-return order.

(7) Unless the courts in the Member State where the child is habitually resident immediately before the wrongful removal or retention have already been seized of the matter by the parties the court or central authority that receives the information mentioned in para. 6 must notify it to the parties and invite them to make submissions to the court in accordance with the national law within three months of the date of notification so that the court can examine the question of custody of the child.  Without prejudice to the rules on jurisdiction contained in this regulation the court shall close the case if no submissions have been received by the court within the time limit.

(8) Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this regulation shall be enforceable in accordance with Section 4 below in order to secure the return of the child.'

26 The Defences under the Hague Convention have generated a considerable amount of case law in this country in recent years.  I shall consider some relevant cases on the relevant aspects of the Convention below.

The issues.
27 The issues for this court can be summarised succinctly as follows: (1) did the father give his consent to the permanent removal of the children from Sweden or their permanent retention in this country?  (2) If not, has the father subsequently acquiesced in the removal or retention of the children in England?  (3) How should the court exercise any discretion that arises from a positive answer to Questions 1 or 2?

Consent.

The case law.
28 The leading decision on interpretation of the consent defence under the Hague Convention is now Re PJ (Abduction) [2009] EWCA Civ 588, [2009] 2 FLR 1051.  Four particular principles are set out in that decision.  It is instructive to consider two other first instance decisions cited and approved by the Court of Appeal in Re PJ and relevant to the case before me.  First, in Re K (Abduction)(Consent) [1997] 2 FLR 292 Mrs Justice Hale (as she then was) stated inter alia at p. 217:

'It is obvious that consent must be real; it must be positive; and it must be unequivocal but that is a separate issue from the nature of the evidence required to establish it.  There may be circumstances in which the court can be satisfied that such consent has been given even though it has not been given in writing.  It stands to reason however that most people who wish to retain or remove a child will be well advised to get written consent before they do so to place the matter beyond argument.  There may also be circumstances in which it can be inferred from conduct.'

29 The second decision at first instance relevant to the current case is that of Mr Justice Bodey in Re L (Abduction)(Future consent) [2007] EWHC 2181, [2008] 1 FLR 914.  This is a decision upon which Miss Renton relies heavily on behalf of the father and I will therefore consider it in some detail.  The facts are best summarised in the headnote as follows:

'The British mother and the American father lived in the United States with the two children.  The marriage was going through difficulties and the parties agreed to separate, recording the terms of their agreement in a document that provided for the father to live away from the matrimonial home with contact to the children.  The agreement also provided that " In case the separation leads to eventually divorce the mother may reside with the children in the United Kingdom."  The mother claims the couple then separated; the father claimed that the separation did not in fact happen.  In any event there was no divorce.  The following year the family moved to Florida, staying with relatives of the father at first but with a view to purchasing a home and permanently relocating there.  In response to the mother's concerns about remaining in Florida, the father proposed in an email that the mother move into the new property to see how things went but that if by the end of the school year she still did not like it mother and children could move to London and he would join them there whenever he got a job.  Following a family conference involving both the mother's mother and father's brother, it was agreed that the mother would give Florida a try.  There were in any event longstanding arrangements for the mother to travel to England for the summer for a holiday.  When the mother left at the end of the school year it was on the basis that she was going on holiday.  Return tickets were purchased, a family trip to Spain to include the father was organised, and the mother re-registered the children at their school in Florida.  Shortly after her arrival in England, the mother informed the father that the marriage was over and that she and the children were settling in England.' 

30  Mr Justice Bodey held there was no consent on the facts of that case to the permanent removal of the children from the United States and ordered them to be returned to that country.  The key section of his judgment is set out in paras. 29-32:

Obviously, these questions of consent will always be fact-specific and will involve questions of degree, but I can see no reason in principle why a consent should not be valid if tied to some future event even an uncertain timing provided that the happening in the event is of reasonable ascertainability.  It cannot be something too vague, too uncertain or too subjective ....  Common sense is everything in this sphere.  If the consent was given when the facts were wholly and manifestly different from those prevailing at the time of removal, or if the consent was given so long ago that it must clearly have lapsed, or if the consenting party had withdrawn that consent before it was acted upon by a removal of the child, then in those various circumstances the Defence would not be made out.  It is all a question of degree.  (31) Here, putting the mother's case at its highest, the father gave a future consent in August 2006 to a planned removal of the mother and the children at the end of the school year in 2007 if she was not happy in Florida.  That is what she says makes good her Article 13 Defence.  But before she left with the children there had been further discussions between her and the father describing her proposed trip as a holiday.  Return tickets were purchased.  The notion of a holiday is consistent only with a return at the end of it – the antithesis of a permanent relocation.  (32) In my view those discussions.  In the context of a holiday replaced or modified the wider permission that the mother says he had earlier received.  They replaced it with a more circumscribed permission, i.e. to remove and then to return, thereby bringing to an end or at least suspending the more generous relocation permission which the mother says she already had.  In a non-contracting sphere such as this a party cannot purport to act on an original wider agreement which has later been superseded by a more restricted one.  (33) Put shortly, the mother did not purport to act at the time of removal on the relocation permission upon which she now relies but rather on the permission to go for a holiday.'

31 As I have said, the leading decision on consent is now Re PJ.  It is unnecessary to recite the facts of that case.  At para. 48 of his judgment Lord Justice Ward summarises the principles to be derived from the authorities including Re L as follows:

'(1) Consent to the removal of the child must be clear and unequivocal.   (2) Consent can be given for removal at some future but unspecified time or upon happening of some future event.  (3) Such advance consent must however still be operative and in force at the time of the actual removal.  (4) The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  Fulfilment of the condition must not depend on the subjective determination of one party; for example 'Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.'  The event must be objectively verifiable.  (5) Consent or the lack of it must be viewed in the context of the realities of family life or more precisely in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of or governed by the law of contract.  (6) Consequently, consent can be withdrawn at any time before actual removal.  If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.  (7) The burden of proving the consent rests on him or her who asserts it.  (8) The inquiry is inevitably fact-specific, and the facts and circumstances will vary infinitely from case to case.  (9) The ultimate question is a simple one, even if a multitude of facts bear upon the answer; it is simply this, had the other parent clearly and unequivocally consented to the removal?'

Consent in this case.
32 The terms of the 2006 agreement were to my mind clear and unequivocal.  In the event that the mother decided to leave Sweden, the father '(a) gives all permissions necessary to enable CT and the offspring to leave Sweden whether temporarily or permanently at any time and for any reason whatsoever, and (b) agrees that he will give all or any further permissions which may be necessary to enable CT and the offspring to leave Sweden or remain out of Sweden whether temporarily or permanently at any time and for any reason whatsoever.'  In my judgment this amounts to clear and unequivocal consent.  The event that would trigger the removal was specific, i.e. specified as being the mother's decision to leave Sweden.  Of course, as the authorities make clear, consent in this context is not to be viewed as under the law of contract and thus it will always be open to the father to withdraw his consent at any time.  In this case however I find the father has never withdrawn his consent; on the contrary, I find that he reaffirmed it on a number of occasions, both in oral conversations and in the written documents signed by him in February and March 2011. 

33 In his oral evidence the father accepted that the meaning of the 2006 agreement was indeed clear and unequivocal.  He accepted that his English now is very good and that he now fully understood the meaning of the agreement.  He asserted that in 2006 his English was not as good and that he did not appreciate its meaning.  The mother did not agree, saying that he always fully understood and accepted the terms of the 2006 document.  I accept the mother's evidence on this point.  I also accept her evidence as to the purpose of the February and March 2011 documents, and that there were regular oral conversations in which the father reiterated his clear and unequivocal agreement to the mother and children going to England in the event that she decided to leave Sweden.  I accept the mother's assertion set out in her email of 26th July that, when the parties discussed the question of separation in May 2011 on her return from a week's visit to England, she said that in the event of a separation she would need the father's support to help her and the children get established in England and that he gave a clear and unambiguous assurance that he would do so.

34 On behalf of the father Miss Renton concedes that the father never expressly withdrew his consent.  She rests her case on the proposition which she says is derived from Mr Justice Bodey's decision in Re L, namely, that a previous consent to permanent removal is always suspended or modified if followed by a temporary removal.  In other words, she submits that the father's consent to the mother permanently removing the children to England was 'suspended' for the duration of the temporary removal which started on 12th June 2006.  She submits that this follows from Mr Justice Bodey's observation at para. 32 of Re L:

'In a non-contractual sphere such as this a party cannot purport to act upon the original wide agreement which has later been superseded by a more restrictive one.'

But it does not follow from that proposition that in every case where a mother takes children out of the jurisdiction for a limited period a clear and unequivocal agreement entitling her to remove the children permanently from the jurisdiction if she chooses to leave the jurisdiction is automatically superseded.  Nor in my judgment is the clear and unequivocal agreement that the mother may remove the children permanently necessarily suspended for the duration of any time-limited absence from the jurisdiction.  Each case turns on its own particular facts.  In argument, I asked Miss Renton what would have been the position if the mother had not left the jurisdiction on 12th June but instead had waited until 26th July and then left the jurisdiction at the same time as sending her email of that date, assuming the father's consent had not been withdrawn in the interim.  As I understand Miss Renton's response, she conceded that in those circumstances the removal would have been with the father's consent whilst adhering to her proposition that that proposition was hypothetical because on the facts of this case the agreement had been superseded by reason of the temporary removal.  Similarly, I have asked myself if the agreement would remain in force and assuming the consent was not withdrawn the mother would have been entitled on return from the temporary removal to remove the children again immediately on a permanent basis.  In my judgment, the agreement to remove the children permanently continued without modification throughout the period of the temporary removal.

35 Mr Justice Bodey also observed, as I have cited, in the judgment in Re L that common sense is everything in this sphere.  I agree, and find that at all material times in this case the father gave a clear and unequivocal consent to the mother removing the children from the jurisdiction permanently in the event that she decided to leave Sweden.  The origins of that consent lie in the 2006 agreement.  It is pointed out by Miss Renton that by 2011 the circumstances were different.  Whereas in 2006 the marriage was happy, the mother was in relatively good health and no children had yet been born, by 2011 there were two children, the mother was suffering from depression and the marriage was on the rocks.  I find, however, that the father renewed, his consent in writing in February and March 2011 and also orally.  He never withdrew that consent.  On the facts of this case I do not consider that the circumstances of the trip to England that started on 12th June, including the discussions between the parties about that trip prior to and after that date, can be interpreted as suspending or modifying that clear and unequivocal consent in any way.  Accordingly, I find that the father gave his consent to the children's removal and or retention to this country.

Acquiescence.
36 In view of my findings concerning consent, it is strictly unnecessary for me to consider the alternative Defence of acquiescence and I propose to deal with it briefly.  The leading case on acquiescence is Re H (Abduction)(Acquiescence) [1997] 1 FLR 872.  I have the principles set out by Lord Browne-Wilkinson in that judgment very much in mind.  On the facts of this case I am satisfied that by 5th August the father was clearly indicating that he did not wish the children to remain in this country.  That is clearly set out in his email on that date and it remained his clear and unchanged position at all points thereafter.  Mr Rosenblatt on behalf of the mother sought, somewhat faintly, in my view, to argue that there were aspects of the father's conduct in the course of the proceedings that were indicative of acquiescence.  To my mind, however, there is no evidence from which the court could conclude either that the father's subjective intention was to acquiesce or that there was any behaviour of the type which would lead the mother to conclude that the father was not serving his rights.  Accordingly, had the consent Defence not been made out, the Defence of acquiescence would not have succeeded.

Discretion.
37 If a court concludes that one of the Defences under Article 13 is made out, as I have done, it must then proceed to consider whether to exercise its discretion to order a summary return.  The leading authority on exercise of discretion is that of the House of Lords in Re M (Zimbabwe) [2007] UKHL 55, [2008] 1 AC 1288.  The principles are set out in the speech of Baroness Hale of Richmond, in particular paras. 40-45.  The principles which I derive from her judgment are as follows:

(1) It is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention.  The circumstances in which return may be refused are themselves exceptions to the general rule.  That in itself is sufficient exceptionality.  It is neither necessary nor desirable to import an additional gloss into the Convention.

(2) In Convention cases, in contrast to non-Convention abduction cases, the welfare of the child is not paramount although it is a factor to be taken into consideration.

(3) In Convention cases there are general policy considerations which may be weighed against the interests of the child in the individual case.  These policy considerations include not only the swift return of the children but also comity between the contracting states and respect for one another's judicial processes.

(4) Thus when a discretion arises under the Convention itself, that discretion is at large.  The court is entitled to take into account the various aspects of the Convention policy alongside the circumstances which gave the court discretion in the first place and the wider considerations of the child's rights and welfare.  It is not the law that the Convention objectives should always be given more weight than the other considerations.  Sometimes they should; sometimes they should not.

(5) The weight to be given to Convention considerations and the interests of the child will vary enormously.  The extent to which it would be appropriate to investigate these considerations will also vary.  The further one gets away from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

(6) In consent or acquiescence cases general considerations of comity and confidence particular considerations in relation to speed of legal proceedings and approach to relocation in the home country and individual considerations relating to the particular child might point to a speedy return so that the child's future can be decided in his or her home country.

38 In C v H (Abduction, consent) [2009] EWHC 2660, [2010] 1 FLR 225 Mr Justice Munby (as he then was) at para. 46 observed obiter: 'Discretion in every case is at large and unfettered.'   He also expressed the view that he was 'inclined to think that it will be an unusual case in which consent having been established it would nonetheless be appropriate to order a return.' 

39 In this case Miss Renton submits rightly that these children are Swedish nationals who have lived their whole lives in Sweden up to the point of their removal in June 2011.  Secondly, she observes that this is a 'hot pursuit' case so that the policy of the Hague Convention under the authority of Re M is a weighty factor for the court to consider.  She points out that the children are young and cannot be said to have 'embedded' themselves in England.  Their home is Sweden, she submits, and it will be easy for them to integrate back into that country.  She also submitted that the fact that the agreement was activated while the mother and the children were outside the jurisdiction operated unfairly on the father and that that was something to be taken into account when pursuing the exercise of my discretion.  I take all those points into account.  I also take into account the policy considerations underpinning the Convention as identified by Baroness Hale in Re M.

40 I also take into account Mr Rosenblatt's submission on behalf of the mother.   The court must have regard of the importance to observe the agreements entered into by parties to a marriage.  In this case, in my judgment, it was a fundamental feature of this marriage, agreed to before the children were born, and fully understood by both these intelligent adults, that if the mother decided to leave Sweden at any point she was able to take the children with her.  In all the circumstances, I therefore propose to exercise my discretion by refusing to order the return of J and E to Sweden. 

41 That is of course not necessarily the end of litigation concerning these children.  The purpose of the Hague Convention proceedings is principally not to make decisions about welfare but rather to identify the court in which those decisions should be taken.  Furthermore, as both the UK and Sweden are parties to Brussels II Revised, there is the further process under Article 11 which I have recited above which may now take place.  I hope it is not inappropriate for me to make this observation, however.  Notwithstanding the possibility and scope for further litigation I urge these parties to endeavour to reach agreement about the future of these children who they both so obviously dearly love.